After all, although compelled to strip naked, some detainees are not “touched” in any way, although they may be compelled, as Albert Florence was in this case, to lift his genitals for inspection. Likewise we are told that “the term jail here is used here in a broad sense to include prisons and other detention facilities,” seemingly ignoring the obvious and substantial differences between the constitutional rights of those held in a jail that houses arrestees and a prison that houses convicted criminals.
Perhaps most shameful is the willingness of the court to sacrifice the character of Florence to the needs of correctional institutions. Kennedy’s recitation of the facts begins not with the questionable traffic stop and arrest of Florence on an outdated and incorrect warrant in 2005, but with Florence’s 1998 arrest for fleeing from a police officer and use of a “deadly weapon.” Kennedy fails to mention that the deadly weapon in question was the car Florence was driving during his encounter with police.
Florence was subjected to a fine for this infraction, and when he failed to make prompt payments, he was held in civil contempt. Florence paid the fine a week after the contempt order. And because he believed that he had been subjected to racially motivated traffic stops in the past, Florence kept a copy of an authenticated document proving that he’d paid the fine in the glove compartment of his car.
The case before the court arose from the 2005 arrest of Florence seven years later. When his BMW was pulled over by police in Burlington County, N.J., Florence wasn’t even driving (pdf). The car was driven by his pregnant wife. His 4-year-old son was in the car, and the family was returning from a gathering to celebrate the Florences’ purchase of a new home. Police asked who owned the car, and when Florence provided his identification, officers ran his name through a database, which incorrectly indicated that his contempt fine remained unpaid.
Florence, a black businessman and father of four, showed the police his proof of payment on the judgment, to no avail. He was arrested and taken to the county jail. There, and at another jail to which he was transferred, Florence was subjected to two strip searches — once in the company of other arrestees, even though he presented no known threat to officers or other prisoners.
Although he should have been taken before a magistrate within 24 hours, Florence remained in jail for six days before he saw a judge. He was released immediately once it was determined that he had been arrested in error. Florence described the strip searches as humiliating experiences that made him feel like an animal. It has never been made clear why officers pulled over Florence’s car. (To hear Albert Florence’s story in his own words, go here.)
On the day his case was to be argued in the Supreme Court, Florence expressed his excitement about the hearing and his faith in the judicial system. Justice Kennedy’s opinion shamefully repays Florence’s confidence in our judicial system with a cramped, narrow reading of the Fourth Amendment and with a cold rejection of the right of those who are innocent until proven guilty to be free from the government’s intrusion on their dignity and bodily integrity.
Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.